The Empire Strikes Back

I’ve linked to articles expressing outrage about the recent decision of the Copyright Royalty Board that threatens to shut down a wide swath of internet radio stations, including my own PostClassic Radio. Just so you know what the other side is saying, I print here a letter a friend sent me that he received from his musicians’ union. It’s a nice piece of propaganda, framing the CRB decision as being entirely motivated to make sure musicians (not corporations, of course) get paid their due. My own comments are bold-faced:

A recent pro-musician decision of the Copyright Royalty Board has sparked a lot of adverse press. Even worse, webcasters and broadcasters have instigated a “grass-roots” campaign urging music fans to complain to Congress about the decision. The purpose of this e-mail is to make sure that musicians are informed about the facts – and to ask you to send your own pro-musician message to your representatives in Washington!

The Background. The Copyright Act requires webcasters and broadcasters to pay royalties when they stream sound recordings on the internet. By law, 50% of the royalties for streaming go to performers. SoundExchange collects the royalties and pays 45% of them directly to individual featured performers. SoundExchange pays 5% (the share set by statute) to the AFM and AFTRA Fund for distribution to session musicians and vocalists. The remaining 50% goes to the sound recording copyright owner – which is usually a record label [interestingly soft-pedaled admission] but in some cases [!] is also the performer.

The Decision. The judges heard 48 days of testimony and reviewed thousands of pages of evidence about the webcasting business and about the businesses of performers and record labels. AFM Vice President Harold Bradley and member Cathy Fink testified about the creative work musicians do in the recording process, and about how important this new income stream is to musicians. President Tom Lee testified about the ways SoundExchange works for musicians. And then the judges carefully considered all they had heard – and got it right. They wrote a careful, 115-page decision that acknowledged the value of musicians’ creative work and the importance of fairly compensating us when businesses [“businesses” – there’s a loaded word that totally misrepresents most internet stations likely to be killed by the ruling] use our product. [“Our” product – whaddya mean “we,” paleface?]

The Webcaster Backlash. Although the webcasters and broadcasters presented a complex and detailed case to the judges – and although the hearing process is one that they asked Congress to create – some don’t like the result and are seeking a Congressional override. This makes no sense. What is worse is that large (and wealthy) webcasters like AOL and Yahoo are hiding behind a few [thousand] small webcasters who complain that as “small businesses,” they can’t afford to pay the royalties [or are making no income at all, doing it as a labor of love or mere means of exposure]. Webcasters made similar complaints the last time rates were set in 2002 – and since then, webcaster revenues overall have jumped from $50 million to $500 million per year. [Tenfold? I’d bet the number of webcasters has increased more than tenfold since 2002, so that’s a meaningless statistic.]

Performers Need to Be Paid for Use of Our Work. Most musicians need to patch together lots of income streams in order survive – including royalties for the use of our recordings. Please let Congress know how important this money is to musicians! Urge your representatives to resist the pressure to override the rates set by the CRB.

There follows a sample letter to be sent to one’s congressperson, hitting most of the same talking points. I think I need hardly point out that PostClassic Radio costs me about $300 a year to run, and that I derive no income from it at all. The composers I play are almost all greatly in need of exposure, and I’ve heard abundant anecdotal evidence of people buying CDs to get what they’ve heard on PostClassic Radio. Shut me down, price Live365 out of my affordable range, and a few hundred composers will suddenly not be heard on internet radio at all, and will get nothing – no exposure, no royalties, no CD sales. Becoming entirely commercial, internet radio will then be forced back into the same deadening lack of variety that radio has suffered in recent years.

Comments

Kyle,
What gets unsaid in your blog is, how much you pay in royalties per music play on your PostClassic Radio station?
–DavidKG replies: I don’t know the figure, but one of Live365’s selling points is that they claim to pay royalties. Here’s the statement from their web site:

All [Live365] broadcasting stations adhere to rules set forth in the Digital Millennium Copyright Act (the “DMCA”). Live365 broadcasters are required to agree to and abide by these rules upon starting a station. Live365 also has licenses with the American Society of Composers, Authors and Publishers (“ASCAP”), Broadcast Music, Inc. (“BMI”) and The Society of European Stage Authors and Composers (“SESAC”). These licenses allow broadcasters to stream licensed music on their stations….

I imagine the $300 I pay is divvied up somewhat along the lines given in the letter above, assuming *he’s* telling the truth. I’ve searched the web site for more specific details and haven’t found them. But aside from Cage’s In a Landscape, my “theme song,” I hardly play composers nearly as famous as Glass and Reich, and the composers have all been grateful for the exposure. No one’s ever asked about the money.

It’s interesting to think over how this ruling would apply to a station like Postclassic, which plays music from tiny independent labels in which the recording copyright owners frequently are the composers/performers. If a station is already valued solely on the basis of the free exposure it gives musicians/composers, it makes no practical sense to introduce royalties at an entire cost to the webcaster. In theory, a webcaster could request a compensation fee (don’t say “payola!”) from the composers/performers whose work he/she broadcastings–a fee for which they would, in turn, be compensated through their alleged royalties. The net gain would still be zero, but it could potentially circumvent the problem of prohibitively high royalty fees.

OK, I decided to do a little anecdotal investigation on how listening to PostClassic Radio influenceds the economy of composers. I took an inventory of all the cds and so forth that I definitely had purchased as a direct result of hearing a work on PostClassic radio. Here’s the tally (though I’m sure I’ve omitted a few):
Elodie Lauten,
Wm Duckworth (2cds, scores to Southern Harmony),
Larry Polansky: Crawford Variations,
Ben Neill (3cds),
KGann (3cds),
Julius Eastman,
Wayne Siegel,
Glenn Branca (4cds),
Mikel Rouse (4 cds),
John Luther Adams (3 cds).
Additionally, I recommended that our university library purchase the scores to the Duckworth Time Curve Preludes and Southern Harmony, as well as several scores by John Luther Adams. They did.
So one person’s listening to PostClassic radio over a period of about a year resulted in several hundred dollars worth of economic activity that would most likely directly benefit the composers in question. I would be very surprised if I were the only listener for whom this is true.
I wonder if this reality was noted in all of this testimony. We will all be so much the poorer if this comes to pass.

Where do the royalty-collecting organizations (ASCAP/BMI) come down on this issue? It seems like what we need is an advocacy organization that speaks for composers – which is, in part, what they are supposed to be. It wouldn’t surprise me, though, if they came down on the wrong side of this issue (as they did with the Disney Protection Act, or whatever that copyright extension bill was called), since they tend to advocate for stronger copyright protections. Have they made public statements or generally been involved?

A bigger problem is that the publisher, most times the record company and very seldom the artist, is dipping in again and still getting more than the artist from this new revenue source. If its a single artist or multi-member band the difference will be significant. They all with share 45% while the publisher gets 50% the is not shared. The company is a single entity. That is a major flaw to begin with. Address that first to attain more equity. The recording industry is trying to con their way out of their short sighted greed that blinded them to the value of the new medium and digital delivery of content.

As one of the composers Kyle has played on his station I have to say that I am entirely grateful for his selfless work in this arena. Because of him and stations like iridianradio and now counterstream dozens of other lesser know folk such as myself are being heard. New listeners have bought my music and new players are performing it. In this tiny slice of ‘music culture’ I do not know of any other outlet that levels the playing field for composers who are not orchestrally focused and who are not published by the ‘big guys’. Hmm.

To me it’s not so much the increase in the cost for the “little guys” like online and public radio so much as it’s that the “big guys” (payola radio, etc.) can get away with paying so little.
Plus, how do the publishing houses justify demanding royalties on music and artists they refuse to put back in print or “encourage” radio stations to play? It’s not _my_ fault (or Gann’s either for that matter) that PostClassic Radio is the only place to hear a good deal of it.

It seems to me that the only real question in all this is, does a composer have a right to make her own decision about who does what with her music? All the composers in question are free to grant anyone, including webradio, the right to use their music for free. One must remember that it is theirs, the copyright and not yours to discuss or approve of, but to respect.KG replies: True, but while I could easily (or rather not easily, it’d be a pain in the neck) obtain permission from everyone whose music I play, conveying that permission in such form as would satisfy Live365 would be a bureaucratic nightmare, which would then be multiplied by their 10,000 stations. Meanwhile, Live365 is already paying the royalties currently required in order to obviate the necessity of such permissions. What if a regular radio station couldn’t play a commercial CD until it had obtained individual permission from each performer? Seems to me, by issuing a commercial CD you’re already relinquishing a certain amount of control.

Kyle Gann

Just as Harry Partch called himself a "philosophic music man seduced into carpentry," I'm a composer seduced into musicology... Read More…

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